284 F.

3d 272

Shelley A. JODOIN, Individually and as Natural Parent, Next

Friend and Guardian of Timothy D. Dorsey, a Minor, and
Lawrence H. Jodoin, Plaintiffs, Appellants,
v.
TOYOTA MOTOR CORPORATION, Toyota Motor Sales
U.S.A., Inc., Defendants, Appellees.
No. 01-1554.

United States Court of Appeals, First Circuit.

Heard December 5, 2001.
Decided April 1, 2002.
Rehearing and Suggestion for Rehearing En Banc Denied April 25, 2002.

COPYRIGHT MATERIAL OMITTED John S. Foley, with whom Mark

B. Decof, Howard B. Klein, and Decof & Decof were on brief, for
appellants.
Gerald C. DeMaria, with whom Higgins, Cavanagh & Cooney, Richard
W. Shapiro, Law Offices of Richard W. Shapiro P.L.C., Richard A.
Derevan and Snell & Wilmer L.L.P. were on brief, for appellees.
Before BOUDIN, Chief Judge, TORRUELLA, Circuit Judge, and CYR,
Senior Circuit Judge.
TORRUELLA, Circuit Judge.

Shelley Jodoin was injured in a car accident and, with her husband and son,
sued Toyota Motor Corporation and Toyota Motor Sales U.S.A., Inc.
("Toyota") alleging a design defect in her vehicle. During trial, the district court
excluded all evidence relating to testing done by plaintiffs' expert. After this
ruling, plaintiffs conceded that they would be unable to prove defect, an
element of their prima facie case, and the district court granted judgment as a
matter of law in favor of Toyota. On appeal, plaintiffs challenge the district
court's exclusion of the testing evidence. We vacate the judgment in favor of
Toyota and remand for a new trial.

I.
2

On October 6, 1995, plaintiff-appellant Shelley Jodoin was hit from behind as

she drove her 1988 Toyota 4x4 pick-up truck. The impact pushed her vehicle
into a counter-clockwise turn. She attempted to correct the course of her truck,
but as she turned to the right, her truck flipped, rolling over several times. As a
result of the accident, Mrs. Jodoin is permanently paralyzed.

Mrs. Jodoin, her husband, and her son brought suit against Toyota alleging a
design defect in Mrs. Jodoin's truck which made it prone to rollover. At trial,
plaintiffs relied on the testimony of their primary liability expert, Robert Loyd
Anderson, to prove this defect. They had employed Mr. Anderson to perform an
accident reconstruction and test another 1988 Toyota 4x4 truck to determine its
rollover propensity. Mr. Anderson was allowed to testify about his accident
reconstruction conclusions. However, when plaintiffs attempted to introduce
Mr. Anderson's testimony regarding the testing of the exemplar vehicle, the
court refused to allow the testimony for lack of a proper foundation. The court
reasoned as follows:

[Y]ou've got a big problem here that you can't remedy ... we're not interested in
the date of manufacture what these two vehicles were like. What we're
interested in is what they were like at the time of the ... accident, and whether
the exemplar was the same. And we don't know what condition the exemplar
was or what it went through, what its history was. For example, whether it had
been in an accident previously, which weakened some structures and other
factors. And this witness can't testify to that. He knows nothing about the
history of the vehicle. So you're wasting your time. All of this is irrelevant until
you establish that the exemplar was virtually identical in all respects with the
subject vehicle. And only then can you get into the question of what tests were
run.... You can't get there from here, I can tell you now, not with this witness.

The court suggested that plaintiffs could lay a proper foundation by introducing
testimony from the people who purchased the car for Mr. Anderson or the
people from whom the exemplar vehicle was purchased. Plaintiffs introduced
no such testimony. Therefore, Mr. Anderson was not allowed to testify as to
how the design of the exemplar vehicle compared with the design of Mrs.
Jodoin's vehicle.

Plaintiffs did try to lay a foundation based on Mr. Anderson's testimony. First,
Mr. Anderson claimed to have checked the vehicle identification tags to verify
that the load ratings and tires were the same. Furthermore, the record reflects

that the exemplar and Mrs. Jodoin's vehicle had similar vehicle identification
numbers ("VIN"). Second, he testified to performing a structural examination of
the steering components, suspension components, tires, and springs, including
crawling under the truck to inspect the undercarriage. Third, he said he had
looked at the instrumentation and modifications made for the purposes of
testing, which he documented. This examination included "[e]verything [Mr.
Anderson] thought ... would be related to the vehicle dynamics and the issues
that [he] was evaluating." He testified that he detected no evidence of any
modifications or any parts that were not Toyota's original equipment. However,
Mr. Anderson had no personal knowledge of where the exemplar vehicle came
from or how it was obtained, and he did not testify to that history.
7

When plaintiffs attempted to question Mr. Anderson regarding the relationship

between the design characteristics of Mrs. Jodoin's vehicle and its rollover
stability, the court upheld an objection to the testimony, stating, "obviously
[Mr. Anderson's testimony is] based on testing; and the results of the testing is
not admissible at this point, [sic] it never will be." When plaintiffs had
previously attempted to introduce testimony on the general relationship
between a vehicle's design features and its propensity to rollover, the court
excluded that testimony as irrelevant. Therefore, plaintiffs were unable to
introduce any testimony regarding design and rollover propensity.

The next day, outside the presence of the jury, plaintiffs addressed the court
and asked it to reconsider its ruling. The court again pointed to the lack of
information on the exemplar vehicle's history and repeated that it would
exclude any evidence relating to testing of that vehicle without such a history.
The court said that plaintiffs needed to "show ... where [the exemplar vehicle]
was purchased [and] have some evidence as to whether that's a legitimate VIN
number on [the exemplar vehicle], and somebody who has the expertise to be
able to tell us what the VIN number means ... [a]nd whether there's been any
changes in the vehicle since its manufacture."

In response, plaintiffs made an offer of proof regarding what Mr. Anderson

would have testified to regarding the similarities between the exemplar vehicle
and Mrs. Jodoin's vehicle. This included, mainly, Mr. Anderson's conclusion,
based on the VINs of the two vehicles, that the vehicles were "virtually
identical." It also contained his conclusion that the exemplar vehicle was in
good condition and "reasonably similar to the kind of condition" he would
expect for a vehicle that had not been involved in any accidents, damaged or
modified.

10

Toyota opposed the offer of proof and contended that plaintiffs could never

clear the substantial similarity hurdle in regard to the exemplar vehicle. In

support, Toyota cited information that the exemplar vehicle had been sent to a
dealership for extensive repairs after it had been acquired for Mr. Anderson's
tests; yet Mr. Anderson had no information on those repairs.
11

During the offer of proof, when plaintiffs attempted to introduce evidence

relating to the testing, the court stopped them, maintaining the need for a
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786,
125 L.Ed.2d 469 (1993), hearing before the testing or test results could be
entered on the record. Plaintiffs declined to hold the hearing because the court
iterated that the test results could not be admitted for lack of an adequate
foundation, regardless of the outcome of the Daubert hearing. Therefore, the
record contains no information on Mr. Anderson's findings.

12

After the district court reinforced its ruling relating to the inadmissibility of Mr.
Anderson's testimony regarding the exemplar vehicle, plaintiffs acknowledged
they would be unable to prove defect, an element of their prima facie case. The
court then asked plaintiffs if they were going to dismiss the case. Plaintiffs
responded that they would not do so voluntarily. Then, the court asked, "Are
you going to rest your case so I can grant a motion for a directed verdict?" After
taking a short recess, plaintiffs accepted the court's suggestion and rested their
case. Toyota moved for judgment as a matter of law based on plaintiffs' failure
to produce evidence of defect, and the court granted the motion. This appeal
followed.

II.
13

On appeal, plaintiffs contend that the district court abused its discretion by
excluding all testimony regarding the testing of the exemplar vehicle. However,
before we can reach that question, we must resolve a threshold matter: whether
plaintiffs essentially abandoned their case when they rested before proving any
of the elements of their claim. Because the district court suggested, incorrectly,
that plaintiffs needed to rest before the court could consider a Rule 50 motion,
we find that, under these facts, plaintiffs did not "abandon" their case.

14

Under Rhode Island law, plaintiffs must prove five elements, in addition to
damages, to prevail in a strict liability claim based on design defect: (1) a
defect; (2) the defect existed at the time the product left defendants' hands; (3)
the defect rendered the product unreasonably dangerous; (4) the product was
being used as intended at the time of the accident; and (5) the defect was the
proximate cause of plaintiffs' injuries. Raimbeault v. Takeuchi Mfg. (U.S.) Ltd.,
772 A.2d 1056, 1063 (R.I.2001). Plaintiffs do not dispute that they failed to

produce evidence of causation and damages, not just defect. Therefore, Toyota
contends, it was proper for the district court to grant the Rule 50 motion,
regardless of the district court's evidentiary ruling. Under Toyota's argument,
even if we were to find that the district court abused its discretion by excluding
the testing evidence on the exemplar vehicle, plaintiffs still failed to establish
the other elements of their case, and, therefore, we cannot reverse the district
court's judgment.
15

The district court entered judgment in favor of Toyota under Rule 50(a) of the
Federal Rules of Civil Procedure. This rule provides that a court may enter
judgment as a matter of law after a party has been "fully heard on an issue and
there is no legally sufficient evidentiary basis for a reasonable jury to find for
that party on that issue." Fed.R.Civ.P. 50(a). The rule allows the court to
entertain a Rule 50 motion at "any time before submission of the case to the
jury." Id. (emphasis added); see also Am. & Foreign Ins. Co. v. Gen. Elec. Co.,
45 F.3d 135, 139 (6th Cir.1995) (holding it proper for a trial court to entertain
motions for judgment as a matter of law at any time during trial, not just at the
close of a party's evidence). The advisory committee specifically intended the
rule to authorize "the court to consider a motion for judgment as a matter of law
as soon as a party has completed a presentation on a fact essential to that party's
case." Fed.R.Civ.P. 50 advisory committee's note.

16

Toyota argues that allowing plaintiffs to appeal the district court's evidentiary
ruling at this point essentially permits an interlocutory appeal, which is at odds
with the goal of judicial efficiency.1 We disagree. The advisory committee
specifically contemplated situations like this and stated that "such early action
is appropriate when economy and expedition will be served." Id.

17

Here, the district court ruled that Mr. Anderson would not be able to testify
regarding his testing of the exemplar vehicle, and plaintiffs had no other
evidence to prove defect. Therefore, it was entirely appropriate for the district
court to consider and grant Toyota's Rule 50 motion for judgment as a matter of
law.

18

However, plaintiffs rested their entire case before the court entered judgment.
This, Toyota contends, makes it a more difficult case because the judgment was
entered on more than plaintiffs' failure to prove defect.2 Plaintiffs also failed to
prove other elements of their prima facie case, and those elements, arguably,
were not affected by the district court's exclusion of testimony regarding the
exemplar vehicle.3

19

We do not find this distinction dispositive, here. It is clear from the record that

19

We do not find this distinction dispositive, here. It is clear from the record that
the district court told plaintiffs that they had to rest before it would consider
any dispositive motions. Plaintiffs, therefore, faced the option of continuing to
present evidence, knowing that the additional evidence would have no bearing
on the eventual outcome, or resting their case. Since Rule 50 allows a judge to
issue judgment as a matter of law at any point, once it is clear that a party
cannot prevail, we decline to hold that plaintiffs forfeited their entire case when
they followed the court's direction and rested their case, knowing that they
could not prevail should they continue. In doing so, plaintiffs did not waive
their right to appeal the court's evidentiary rulings.

III.
20

Plaintiffs challenge the district court's ruling excluding all evidence relating to
the testing of the exemplar vehicle. This evidence consists principally of Mr.
Anderson's testimony. The district court deemed the evidence irrelevant unless
plaintiffs could show that the exemplar vehicle was "virtually identical" to Mrs.
Jodoin's truck. Because we find that the district court employed the wrong legal
standard, we conclude that the district court abused its discretion by summarily
excluding the evidence relating to the testing of the exemplar vehicle and that
this error was not harmless.

21

The Federal Rules of Evidence establish a low threshold for relevance,

generally.4 However, relevant evidence may be excluded if its probative value
is "substantially outweighed" by its likelihood to confuse the issue or mislead
the jury. Fed.R.Evid. 403. In this regard, courts have treated with skepticism
evidence that seeks to recreate accidents. See, e.g., Swajian v. Gen. Motors
Corp., 916 F.2d 31, 36 (1st Cir.1990) (upholding exclusion of a videotape test
which portrayed the consequences of a car's axle fracturing). They have not,
however, excluded all such evidence. See, e.g., Robbins v. Whelan, 653 F.2d
47, 49-50 (1st Cir.1981) (overturning district court's exclusion of report
documenting stopping distances for various vehicles).

22

When a party introduces evidence that attempts to reconstruct an accident, that

party must show a "substantial similarity in circumstances" between the
reconstruction and the original accident. Fusco v. Gen. Motors Corp., 11 F.3d
259, 264 (1st Cir.1993). In contrast, a party may introduce evidence that simply
illustrates general scientific principles. See id. Then, we simply inquire whether
the test on which the evidence is premised was "properly conducted." Id.
Differentiating between recreations and illustrations of general scientific
principles can be difficult. See McKnight v. Johnson Controls, Inc., 36 F.3d
1396, 1402 (8th Cir.1994). Generally, we look to whether the evidence "is
sufficiently close in appearance to the original accident to create the risk of

misunderstanding by the jury, for it is that risk that gives rise to the special
requirement to show similar conditions." Fusco, 11 F.3d at 264.
23

Here, Mr. Anderson tested a vehicle of the same make and model year as Mrs.
Jodoin's truck.5 He was also prepared to testify about the rollover propensity of
the vehicle based on these tests. Because the two trucks are facially similar, we
believe that a jury would likely view the testing as a reconstruction of the actual
accident, not as simply illustrative of scientific principles. See McKnight, 36
F.3d at 1402-03 (holding that tests performed on a battery of the same type and
make which were used to explain what happened when the subject battery
exploded "clearly were not limited to a demonstration of scientific principles in
the abstract"). Therefore, the proper test is the substantial similarity standard.
See Fusco, 11 F.3d at 264.

24

When reviewing the district court's application of the substantial similarity test,
we accord substantial deference to the trial court, looking only for an abuse of
discretion. See Udemba v. Nicoli, 237 F.3d 8, 14 (1st Cir.2001). While this
accords the district court considerable latitude, it is not a toothless standard. See
Espeaignnette v. Gene Tierney Co., 43 F.3d 1, 5 (1st Cir.1994). An error of
law, underlying the evidentiary ruling, constitutes an abuse of discretion. See
Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392
(1996) ("A district court by definition abuses its discretion when it makes an
error of law."); see also United States v. Kayser-Roth Corp., 272 F.3d 89, 100
(1st Cir.2001).

25

Here, the district court never specifically applied the substantial similarity
standard. Instead, it announced several times that plaintiffs needed to show that
the exemplar vehicle was "virtually identical" to Mrs. Jodoin's vehicle.
"Virtually identical" is an incorrect standard. See Robbins v. Whelan, 653 F.2d
47, 49 (1st Cir.1981) (holding that "perfect identity" is incorrect standard); see
also Randall v. Warnaco, Inc., Hirsch-Weis Div., 677 F.2d 1226, 1233-34 (8th
Cir.1982) ("Admissibility, however, does not depend on perfect identity
between actual and experimental conditions. Ordinarily, dissimilarities affect
the weight of the evidence, not its admissibility."); accord Szeliga v. Gen.
Motors Corp., 728 F.2d 566, 567 (1st Cir.1984) (holding that "[d]issimilarities
between experimental and actual conditions affect the weight of the evidence,
not its admissibility," but not specifically applying the substantial similarity
standard). Therefore, the district court abused its discretion when it required
plaintiffs to demonstrate that the exemplar vehicle was "virtually identical" to
Mrs. Jodoin's truck.

26

Nevertheless, we will not reverse the district court judgment if the error was

harmless. See Fed.R.Evid. 103(a) ("Error may not be predicated upon a ruling
which admits or excludes evidence, unless a substantial right of the party is
affected"); see also United States v. Meserve, 271 F.3d 314, 329 (1st Cir.2001).
The error is not harmless if the record indicates that plaintiffs offered sufficient
proof that the exemplar vehicle was substantially similar to Mrs. Jodoin's
vehicle. As this evidence is plaintiffs' only proof of defect, any improper
exclusion adversely affects their substantial rights.
27

"Substantial similarity depends upon the underlying theory of the case." Four
Corners Helicopters, Inc. v. Turbomeca, S.A., 979 F.2d 1434, 1440 (10th
Cir.1992). We have looked to the specific variables in various accidents when
determining whether the recreation is substantially similar to the original
accident. Compare Swajian, 916 F.2d at 36 (focusing on the fact that the driver
during a recreation was a professional driver who knew the axle was going to
fracture when driver response to an alleged axle fracture was a key element in
the original accident), with Robbins, 653 F.2d at 49-50 (reversing exclusion of
test data when the only suggested difference between re-enactment and actual
accident was the skill level of the drivers and the trial issue revolved solely
around using length of skid marks to estimate the car's original speed). When
the relevant elements are sufficiently similar, we further emphasize that other
differences are for defendants to highlight and the jury to weigh in its
deliberations. Robbins, 653 F.2d at 50.

28

Here, plaintiffs alleged a design defect based on the rollover propensity of Mrs.
Jodoin's truck. At this point, only the characteristics of the truck are at issue,
not the characteristics of the test. The evidence presented shows that the two
vehicles were essentially the same at the time of manufacture. The question,
then, is whether the exemplar vehicle had suffered alterations or damage which
could affect its rollover propensity prior to any testing.

29

Mr. Anderson testified that he personally inspected the exemplar vehicle for
everything that "would be related to the vehicle dynamics and the issues that
[he] was evaluating." Based on that examination, he found no evidence of any
non-original equipment or modifications. Plaintiffs, in their offer of proof,
submitted that Mr. Anderson could further testify that the truck showed no
evidence of having been in any accidents, otherwise damaged or modified.

30

The district court, however, required that plaintiffs introduce evidence of the
exemplar vehicle's history. We see no reason such information would need to be
presented in order to show substantial similarity. No cases suggest such a
requirement. Bogosian v. Mercedes-Benz of N. Am., Inc., 104 F.3d 472, 480 (1st
Cir.1997), on which Toyota relies heavily, is inapposite to the current case.

There, the court excluded testing evidence performed on the same car when the
parties were unable to show that the car had not been materially changed in the
two years since the accident and after that car had been examined by numerous
experts in the intervening period. Id. Here, plaintiffs' expert testified that he had
performed a thorough inspection of the exemplar vehicle and detected no
evidence of accidents, damage or modification. If the evidence suggested the
exemplar had been altered in some material respect, the district court might
legitimately require a more complete vehicle history. However, the district
court, sua sponte, instituted this requirement even though nothing in the record
suggested any alteration to the exemplar.
31

We are, nonetheless, troubled by Toyota's allegation that undisclosed

modifications may have been made to the exemplar vehicle before testing.
Assuming that these allegations can be substantiated with competent evidence,
any such modifications may preclude a finding of substantial similarity should
they impact the rollover propensity of the exemplar. These, however, are
questions for the district court to consider on remand.

32

Because we find that plaintiffs cleared the "substantial similarity" hurdle and
because this evidence is admittedly crucial to their case, the exclusion of the
testing evidence was reversible error.

IV.
33

For the foregoing reasons, we vacate the judgment below and remand for a new
trial.

34

Vacated and remanded.

Notes:
1

Toyota also argues that 28 U.S.C. 1292(b) suggests that we should not
consider plaintiffs' appeal of the district court's evidentiary ruling. Section 1292
gives the federal courts of appeals jurisdiction over appeals from interlocutory
orders and decrees entered by federal district courts. Nothing in this grant of
jurisdiction can properly be said to conflict with the current case where
plaintiffs appeal a properly entered judgment as a matter of law

Plaintiffs argue that Toyota's motion for judgment as a matter of law was
limited to the defect issue, and, therefore, it waived its argument with respect to

the remaining elements of the prima facie case. While it is true that if a party
states one ground for granting judgment as a matter of law that party is later
precluded from claiming that the motion should have been granted on another
ground,see Hammond v. T.J. Litle & Co., 82 F.3d 1166, 1170-72 (1st Cir.1996),
we may affirm a district court judgment on any "independently sufficient
ground," including one not raised below. Olsen v. Correiro, 189 F.3d 52, 58
(1st Cir.1999). Therefore, waiver is not applicable to the present case.
3

We say arguably because it is possible that the exclusion of Mr. Anderson's

testimony may have been fatal to the rest of plaintiffs' case. Without being able
to establish a defect, plaintiffs would have been limited in the evidence they
could present on causation and damages, since those elements are related to the
defect question. Neither party has fully briefed this issue, however. Therefore, it
is unclear whether we could affirm the judgment as a matter of law even if we
reverse on the evidentiary ruling

Relevant evidence is defined as any evidence having a "tendency to make the

existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence."
Fed.R.Evid. 401

Neither party explicitly argues that Mr. Anderson's testing of the exemplar
vehicle was intended merely to illustrate scientific principles. However,
plaintiffs repeatedly cite to cases in which evidence of accident reconstructions
was admitted solely to illustrate scientific principles